Friday, March 16, 2007

Cooper Photo Op

Many aspects of the current case review by the special prosecutors have been, no doubt, critical to understanding events. For instance:

The interview with the accuser. Which story did she come up with now--her March 14 version of Kim Roberts as a robber and accomplice to rape? Or her April 4 version of Dave Evans with a mustache? Perhaps her April 6 tale of three (unindicted) accomplices to rape, who tore Kim Roberts away from her at the bathroom door? Or her December 21 tale, with the magic towel that wiped away some people's DNA but not others, and in which, for the first time, one of her alleged attackers (Reade Seligmann) did nothing, while a second (Collin Finnerty) was neither Bret, nor Adam, nor Matt?

The review of the defense motions. How could the state of North Carolina justify moving ahead with a case based solely on a lineup in which a discredited DA instructed the police to violate their own procedures and confine the lineup to suspects?

The DNA file. While it is obviously true that the absence of DNA in general is not definitive proof that a crime did not occur, in this particular case, given the type of attack alleged by the accuser and her traveling immediately to hospital after the alleged attack, it is simply inconceivable that there could have been none of her attackers' DNA but that of multiple males uninvolved in the case.

The review of police files. Is it customary in North Carolina for the then-lead investigator to produce a report months after the fact, typed and undated? Or for all law enforcement officers to travel to Burlington for a critical meeting with a lab director and have none of them take any notes?

Yesterday, Attorney Roy Cooper assumed a visible presence in the investigation, but in dealing not with these matters but a public tour of 610 N. Buchanan.

Two possible explanations:(1) This was a photo-op, designed to create the impression of a hands-on AG;(2) The investigation has confirmed that it all was a hoax, and having reached a clear-cut, rather than murky, verdict, the AG now feels willing to be associated with it publicly.

Let's hope (2) is the explanation. In not-for-attribution comments to the H-S, defense attorneys stated that they were impressed with the quality of the AG inquiry to date.

36 comments:

bill anderson
said...

My hope is that all prosecutors will see this case as something akin to Typhoid Mary. If they get too close, they get tarred with that brush.

Granted, we are dealing with political animals who believe that a "justice" system is a mechanism by which to promote political goals, even this case has nothing to take it to trial, but plenty to destroy the career of anyone who wants to try. We need to beat the drum and continue to tell the truth.

Attorney General Roy Cooper, NBC-17 and Shred-It are donating their time and resources to offer a free shred day. This is a perfect way to destroy old tax records, employment records or credit applications. You do NOT need to remove staples and paperclips from the documents. It usually takes about 10 minutes to dump the materials, sign a release and watch the documents shred. If you know anyone who is interested, please pass along this information. It is a free service offered to help prevent Id theft. For more information on how to protect yourself, visit www.noscamnc.gov. Thank you.

My hope is that the AG and special prosecutors are getting close to dropping the charges, and that they are now going through the motions of dotting every i, including visiting the house, to avoid being critisized for not being thorough.

Perhaps they wanted to see the size and layout of the bathroom. Houses of that vintage do not have spacious bathrooms. Four people having sex in one of them has always seemed one of the more incredible claims of this hoax.

There isn't anything about this case which will end in the truth . . . a very cynical view of the people trying to bring it to a conclusion. Someone in the beginning of it could have been manly, competent, and caring, but that isn't what happened.

I'm not sure Cooper is delaying anything. The sheer volume of evidence, reports, motions, et cetera in this case must be astounding, and considering the mess made of it by Nifong, I can't imagine any subsequent attorney rushing to do ANYTHING. Whoever said that they were dotting the i's and crossing the t's is most certainly correct. They want to thoroughly review everything because Nifong never bothered to.

I'm not defending the AG's office but when taking over a case that has been mishandled from the beginning you have no choice but to start at square one.When false information and bogus testimony is mixed in with actual facts and eyewitness statements everything has to be gone over in order to seperate the two.I can only imagine what the 3 LAX players and their families are going through and I certainly hope this matter is resolved in their favor but the special prosecutor cannot be seen rushing to close the case.It must be handled professionally.

I agree with 11:20--for both political and professional reasons, these prosecutors need to make sure they look at EVERYTHING closely before taking any action. And they may, actually, have other cases to attend to as well. While we might like it for them to drop everything and work around the clock to dispatch this case quickly, that's probably not very realistic.

"Perhaps they wanted to see the size and layout of the bathroom. Houses of that vintage do not have spacious bathrooms. Four people having sex in one of them has always seemed one of the more incredible claims of this hoax." Concogs

I'm with Concogs; old houses have very tiny bathrooms don't they? I mean maybe slightly larger than an airline lavatory?

While the process has appeared to be long and painful since Cooper took over, in the greater scheme of things, this is probably the way it has to be done.

More waiting for the lacrosse players must really stink but, to put this business to bed once and for all, Cooper needs to be thorough and thoughtful in the treatment of the case. He has to work within the stupid political reality that there are people who want this to move forward regardless of the evidence.

For himself, he also has to strike a delicate balance between maintaining his political viability among Dem voters who want a conviction and avoiding political suicide by railroading these guys.

The timing is political but the reality is, if Cooper had done the right thing immediately, the brain dead contingent would howl about this for the next 20 years. They will be unhappy as it is, but at least he will have shown due diligence to the lynch mob.

Of course, this is little comfort to the lacrosse players or their parents' bank accounts. No one said identity politics was cheap!

Anyone dumb and reckless enough to distribute a poster such as this could save time for the lawyers of those pictured, at the subsequent civil trial, by typing at the bottom "Exhibit A." That's what it will be.

Professor Johnson, in the book I understand that you are writing about this debacle, I hope that you will compare this with other cases of prosecutorial misconduct. In my view, the gravity and outrageousness of the misconduct of Mr.Nifong and others cannot really be understood unless put into context.

Excuse my ignorance, but can the SPs issue indictments or bring charges for crimes committed during the investigation --- by Nifong, Gottleib, Hinman, et al? What would happen to evidence of criminal activity on their part?

It seems to me there is probably a noticeable shortage of materials to review in this case, compared to what would have been generated by a thorough investigation and full adherence to proper procedures.

I agree with the 11:20 posting from Anonymous and would like to elaborate. I am a paralegal with extensive experience in "inheriting" files from other offices. Even when a file is in pristine order when turned over it will be re-organized to conform to the organizational practices of the receiving office. In this case, there is not one file but three (one for each defendant); each with three separate counts (including the dismissed rape counts). While each file to a great extent will mirror the other two - if I were doing the preliminary review, each document would be inspected and cataloged to ensure that all three files and each document in the files were complete. Following the inspection of the "hard" file, I then enter all pertinent data regarding each discovery document, each witness, each report or statement into a database such as CaseMap so they were linked to each other. This preliminary work is done prior to a substantive review of the file(s). It is likely that the attorneys and staff assigned to the investigation may have other cases and commitments in their workload. Even if they were directed to clear their desks and devote all their time to this case - finalizing any filings/court appearances that can not be continued, rescheduling and requests for continuances, meeting with other attorneys/staff members who might be assuming responsibility for files, etc would have impacted their available time during the initial weeks of their assuming the case.

I as much as you all want these charges to be dropped but we should be realistic - only on TV do cases wrap up quickly

I have a question about the following: "The DNA file. While it is obviously true that the absence of DNA in general is not definitive proof that a crime did not occur, in this particular case, given the type of attack alleged by the accuser and her traveling immediately to hospital after the alleged attack, it is simply inconceivable that there could have been none of her attackers' DNA but that of multiple males uninvolved in the case."

This assertion has been made repeatedly, and it may well be true, but I have seen nothing but assertions in this regard. I have seen no references to any assertions of experts or scientific studies that back up the claim. Does anybody know of any expert authorities who have supported this contention? I looked on Forensic Talk and saw nothing supporting the notion that DNA evidence should invariably be found in every significant sexual assault.

Of course, common sense suggests that DNA evidence should be found in any case in which a condom was not used, and the alleged attackers ejaculated. Maybe that is what KC meant by "in this particular case." [If so, KC's assertion almost does not need scientific support.] The counter argument is that a rape victim could certainly be mistaken about whether condoms had been used or an attacker had ejaculated. [Lets ignore for the moment that it is difficult to imagine how the victim of an assault could be mistaken about an attacker ejaculating in her mouth.]

Understand, I have no doubt at all that the alleged Duke attack is and was a hoax/frame, based upon the totality of the evidence. However, I wonder whether there is really any scientific support for KC's assertion that the absence of DNA evidence in this case is in and of itself conclusive that no attack occurred [at least, if "in this case" does not mean "where the alleged attackers did not wear condoms and ejaculated].

To address an issue that many may raise in response to my question (and it is just a question), there was obviously a lot of other people's DNA discovered on the alleged victim. However, for all we know Crystal could have had sexual contact with dozens of individuals shortly before the alleged attack without all of those sexual contacts resulting in DNA evidence. That is, the fact that some DNA evidence was discovered hardly means that any type of sexual contact will always result in DNA evidence.

So, without regard to the other evidence in this case, and assuming (as I do) that it is not inconceivable that an alleged victim could be mistaken about whether the alleged attackers used condoms or ejaculated, is the absence of DNA evidence itself proof that no sexual attack occurred? What is the expert authority for that proposition?

My cynical side suspects that it's all a show, and that the SP will do exactly what he did when he took over the Hoke-Graves mess (a capital case where the prosecutors had withheld obviously exculpatory evidence): privately realize that the prosecution was a sham, and then proceed with a "prosecution" for political cover anyway, but all in a gentlemanly manner, without the prior prosecutor's criminality, and with full expectation of losing. Then claim that justice was served, and the jury has spoken.

But I'd like to be optimistic in this case, and to believe that they're conducting a real investigation. For political reasons, it would have to be especially thorough and convincing, in order to demonstrate to all but the most outrageous liars and psychos that there is no basis for prosecuting this hoax (except as against Crystal and Mikey et al).

You wonder why this should take 2 months? Consider all of the things that Nifong never did, in his intentional efforts to NOT get at the truth. The SPs really should re-do everything from the ground up, the right way, and do it even better than right, so as to leave no doubt that the whole thing is a hoax. THEN, drop the case.

This is what was done (although before indictment, not after) in the Tawana Brawley hoax. The Grand Jury, rather than just declining to indict, performed an exhaustive investigation and fully documented it. They went so far as to run DNA tests on the feces that Tawana had smeared on herself, in order to prove that it came from the dog next door, not from the big bad white policemen. My hope is that, similarly, this case will produce a "real" pre-trial investigation that can leave no doubt about the truth -- even for idiots, racists and zealots.

Of course, some will still say that the white boys got away with it because of their daddies' money. But these people would say the same even after a trial, with any result short of the death penalty for three innocent white men.

If the SPs do a proper investigation, we can still have both justice (dismissal of charges and full exoneration) and peace (acceptance of the truth by ALMOST everyone). And if they need time to do that, it's OK with me.

The special proscecutors have not asked me for advice yet but if they did I know what I would say. I would tell them to put out a report that was strongly, unambiguously against any further proscecution of this case - with no shades of grey. The accuser should be described as significantly troubled and in need of care, M. Nifong as uniquely corrupt in the history of NC jurisprudence and in need of punishment. They should also get out front about the alleged racial aspects of this and declare that all stories of bad remarks were in-accurately reported and hugely over-blown. The thing is, this is the truth here. The more that the world continues to learn about this evil saga the more clear this will be. Nifong gave that away when he stopped investigating anything back in May/June. The authorities would serve themselves and the public interests if they worked to remove a lingering sense in the public mind that "something might have happened, we just cannot prove it." Because lots of people would want to see a trial happen anyway.. Better to release their findings in detail to cinch the case for no-trial in a definite and public fashion.

ABC is reporting that the accuser is not cooperating with Mr. Cooper and company. This lends credence to the idea that the photo op is intended to show that they did a thorough job but could not go forward because of lack of cooperation from the witness. Apparently Kim won't talk either.

This case is likely Typhoid Mary to the NC Democrat party which is why this has taken so long.

But there is really no excuse for this. All the special prosecutors need to do is:

1. Meet with Mangum and hear her tell a version of her stories.

2. Review Mangum's other statements.

3. Review the DNA evidence.

Then decide if there is any case that could legitly be won before a jury.

If for some odd reason, they think a crime was committed and a case could be won be for a real jury, then they would need to:

4. Talk to the other witnesses at the party, Pittman [aka Roberts] and the other party attendees.

5. Talk to Sgt Shelton and the others who first encountered Mangum at the Kroger.

6. Review the ID include that Mangum IDed four people include one out of town, only three were indicted, and it was conducted in an illegal manner.

7. Review the phone and other timeline evidence.

7. Review the Seligmann alibi evidence.

That is all they needed to do. They did not need to review the various lies of Gottlieb and Wilson. Their charge was to do a new investigation and not be biased by anything Gottlier or Wilson made up.

It should not have taken this much time. The first part could have been done within two weeks. The latter part could have been done within a month.

They are dragging this out far longer than need be. I conjecutured to that was to drop the charges this week with the Duke students out of town. Oddly the special prosecutors are showing the brains and tin political ear of Nifong so far.

At this point, I wonder if dropping the charges is in the best interests of the accused. It may be welcome news in the short term, but after so much misinformation has been ingested by the general public, it would likely leave the case - and the accused - in a legal limbo. Advantage, Nifong.

Then there's the inherent problem regarding the conflict of interest, namely - the fox (AG) investigating the fox (Nifong).

You should read the ABC news piece about what's been going on lately. Apparently the accuser won't talk...yet it is emphasized that this doesn't mean she's lying, she might just feel "victimized" by the system.

According to a "source", the investigation should be finished before the May 7 hearing.

You mention in your 10:05 AM post the free shredding day in Raleigh. I hope Nifong, the Gang of 88, the DPD and all other groups/individuals involved in this fiasco make use of that shredding service. Why? Rule 26 of the Federal Rules of Discovery.

Basically, the rule states that potential parties to law suites must retain all documentation, electronic and physical, that pertain the subject of the potential law suite. That means if any party destroys documents/records prior to discovery, and it can be proven by other means that these records did exist at one time, the party failing to produce those records will be in contempt of court.

Just imagine, a Federal judge stating to Lubiano, "What? You cannot produce those e-mails? You wrote of them in other communications." Bam! "I find you in contempt. You are fined $25,000. You may pay the clerk on your way out."

It isn't a pipe dream. As someone who performs e-discovery services, I would love to assist the attorneys for the LAX 3 in using all the technology available to obtain the evidence to financially ruin the miscreants involved in this case.

I applaud the AG for doing some actual due diligence on the case. One obvious purpose for visiting the house is to see, first-hand, the floor plan of the house in order to determine the likelihood than an attack could have occurred unnoticed by the majority of the participants at the party.

Since I assume that every party attendant still maintains that there was no rape/kidnapping/assault, it makes sense that the AG would want to determine for himself whether or not such a rape/kidnapping/assault could have possibly occurred without the knowledge of the party attendees. I could have saved him the trouble...it is not possible.

However, for the people who are still set on dealing with the case in imaginary, unrealistic terms, the AG's visit to the house will be helpful in forcing definitive opinions from the hoax apologists.

Seeing the floor plan of the house and hearing the assertions of ALL the party attendees, anyone who still believes that a rape/kidnapping/assault occurred must also believe, AT A MINIMUM, that all the other party attendees, including Kim Roberts, were aware of it but chose not to tell the police what they know. Simply, one must also assert that the other ~40 attendees at the party are lying.

In addition, assertions that must be make include...

1). Despite the fact that one of the identified attackers was in Raleigh throughout the ENTIRE DAY AND NIGHT of the party, the ALLEGED victim's identifications can be trusted.2). Despite the ALLEGED victims original assertion of anal and vaginal ejaculation by two of the players, a hoax apologist must pick from asserting (a) the magic towel defense (b) she was somehow mistaken about ejaculation (c) she was completely and throughly "cleaned-up" by her attackers but then had anal and vaginal intercourse with 4-5 men in between the party and the rape kit administration, during which virtually all her time was accounted for...

Anyone who makes these assertions or comes up with an alternate explanation, could possibly have a possible, if HIGHLY improbably, point of view. Anyone who ignores these logical point is simply living a dream/nightmare.

To the question about the DNA, the answer is found in numerous articles and practice guides about DNA. Modern DNA testing is very sensitive and the primary concern is contamination, not failure of detection. All the literature confirms that even minute amounts of DNA will be detected. In this case, the crime as alleged involved massive transfer of DNA, blood, semen, skin etec in quantities billions of times greater than is normally detectable. The allegations, looked at scientifically, are the transfer of DNA. The question is--where did it go? There are only two explanations. One, the sampling was poor. Two, the DNA was washed away.

Whether these two theories had any validity was decimated by the lab findings that detected multiple individual's DNA, including Meehan's. This, in my mind, is why it was suppressed more than any other reason. You could have seventy five nobel prizes and you could not, even given months, selectively clean off ONLY the DNA of the defendants or selectively sample the DNA of the defendants without scientific equipment, and I doubt you could do it with scientific equipment. That is, even the greatest minds in the world could not do what the enablers say happened.

I want to start a list of people who should be, and could be succesfully sued in the aftermath of the charges being dropped... here are a few of mine...1. Duke University2. Mike Nifong3. DPD, including Addison, Gottlieb, Wilson4. The Black Panthers5. Kim Curtis (whoops, already done)6. Help me with which other G88 members could be targets7. Wendy Murphy (God I hope so)8. CGM ( I know she has no money, but what about the OJ effect, don't let her profit from a book down the road)9. Brian Meehan ??10. State of NC (Civil Rights violations)

The wishful thinking list would include the judge who issued the illegal gag order....

I bet lawyers are already preparing the filings, just waiting for the time to let the hammer fall.....

Blog Awards

About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

Book

Comments Policy

(1) Comments are moderated, but with the lightest of touches, to exclude only off-topic comments or obviously racist or similar remarks.

(2) My clearing a comment implies neither that I agree nor that I disagree with the comment. My opinion is expressed in my words and my words only. Since this blog has more than 1500 posts, and since I at least occasionally comment myself, the blog provides more than enough material for readers to discern my opinions.

(3) If a reader finds an offensive comment, I urge the reader to e-mail me; if the comment is offensive, I will gladly delete it.

(4) Commenters who either misrepresent their identity or who engage in obvious troll behavior will not have their comments cleared. Troll-like behavior includes, but is not limited to: repeatedly linking to off-topic sites; repeatedly asking questions that already have been answered; offering unsubstantiated remarks whose sole purpose appears to be inflaming other commenters.

"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review